The U.S. challenged Apple Inc.’s arguments against unlocking a terrorist’s iPhone, saying the idea that complying would open the door for foreign governments to make similar demands was “misleading” since the company already has a history of providing assistance to China.
That’s one of a handful of counterpoints the government made Thursday in a filing to a California judge considering whether Apple can refuse to help unlock a phone used by one of the gunmen in a deadly shooting in December. Citing Apple’s own data, the Justice Department said the company complied with about three-quarters of China’s requests during the first half of last year.
“Such accommodations provide Apple with access to a huge, and growing, market,” the government said. “This court’s order changes neither the carrots nor the sticks that foreign governments can use on Apple.”
Apple, with the support of sometime rivals including Amazon.com Inc., Google and Microsoft Corp., has decried what they called an unprecedented expansion of government power that endangers the privacy of hundreds of millions of people. The Justice Department tried to narrow the focus back to the iPhone 5c used by a San Bernardino County employee who, with his wife, murdered 14 at a holiday work party on Dec. 2. and died about four hours later in a police shootout.
Apple and its supporters “try to alarm this court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media,” the U.S. said in its reply to arguments filed by the tech companies . “That is a diversion. Apple desperately wants — desperately needs — this case not to be about one isolated iPhone.”
Federal prosecutors won a court order on Feb. 16 requiring Apple to help the FBI bypass the phone’s security features to access encrypted data. They contend that the cooperation they’re seeking isn’t different in nature than what courts have ordered Apple and other companies to provide in the past.
Apple’s transparency report for the first six months of 2015 also indicates that 9,717 devices were targeted in information demands from the U.S. — more than twice as many as in China. And the compliance rate in the U.S. was 81 percent. The same report shows that Apple provided data to other governments, too.
The data the government is citing on China isn’t the same as what is being sought in the San Bernardino case. Prosecutors are using data from a publicly-released report Apple published that shows the company responding to orders from governments around the world. The difference in the San Bernardino case is the data is stored locally on the device behind encryption protections, which isn’t something Apple is known to have helped the Chinese government overcome.
Kristin Huguet, a spokeswoman for Apple, didn’t immediately respond to a request for comment on the U.S. arguments.
Apple argues it can’t be forced under a 1789 law, the All Writs Act, to create software to help the FBI unlock the phone. That law has been used by prosecutors to get court orders requiring those not involved with a crime to provide reasonable assistance to help enforce search warrants. Apple and its tech industry and privacy rights supporters argue the law doesn’t allow companies to be forced to help the U.S. access encrypted information, saying Congress has so far refused to create such a requirement.
In its filing Thursday, the government stuck to its core argument that it’s not putting an undue burden on Apple, saying that one of the world’s most technologically savvy companies can easily comply without risking the security of its operations or the privacy of its customers.
“Apple deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans,” prosecutors said in the filing. “Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden.”
Apple and companies normally competing against it argue that the Justice Department, in trying to force the iPhone-maker to create a back door to the iPhone’s security features, is claiming an authority that Congress has deliberately refused to grant it.
The magistrate judge in Riverside, California, who directed Apple to help the FBI unlock the phone used by Syed Rizwan Farook in the Dec. 2 attack that also wounded 22, is set to consider at a March 22 hearing whether to leave that order in place.
The case is In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, 16-00010, U.S. District Court, Central District of California (Riverside).